Duncan Osborne turned up a 1996 memo from Supreme Court nominee Elena Kagan arguing that religious freedom should trump compliance with state anti-discrimination laws.
A case involved a straight couple in California that wanted to rent an apartment so they lied and said they were married until they signed the lease. Afterwards, they admitted that they weren't and the landlord broke the contract, saying her religion meant hat she couldn't rent to an unmarried couple. The state of California found in favor of the couple, and the landlord took the case to the Supreme Court to overturn the California court's decision. She was represented by the Concerned Women for American, and here's Elena Kagan, in 1996, arguing that the Clinton Administration should file a brief on her behalf:
"The plurality's reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state," wrote Kagan, who has been nominated to serve on the US Supreme Court by President Barack Obama, in an August 4, 1996 memo. "[G]iven the importance of this issue to the President and the danger this decision poses to [the Religious Freedom Restoration Act's] guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision."[...]
In her 1996 memo, Kagan said she was told that the Solicitor General, the office that handles government litigation before the US Supreme Court, was not joining the application.
"The deadline for filing is next week (though the SG's office can of course ask for an extension), so if we want the SG's office to reverse its decision, we will have to act very quickly," Kagan wrote. Quinn's handwritten response on the memo is indecipherable. It is not clear that the Clinton administration joined the petition.
How many Americans are tired of people getting away with anything just because they say that their religion compels them to do something? Check out the ridiculous claim made in the case that ultimately got parts of the Religoius Freedom Restoration Act overturned, after the jump.
The Religious Freedom Restoration Act (RFRA), to which Kagan refers, required that the government show a compelling interest with any law that may curtail someone's religious practices, even if that law is neutral and isn't meant to discriminate against anyone's religion. It passed with overwhelming support as it was meant to respond to a series of rulings and federal decisions that impeded Native American religions (like roads through sacred land, banning of controlled substances used in ceremonies), but was eventually used by Christians to get out of zoning laws.
The case arose when the Catholic Archbishop of San Antonio, Patrick Flores, applied for a building permit to enlarge his 1923 mission-style St. Peter's Church in Boerne, Texas. Local zoning authorities denied the permit, relying on an ordinance governing additions and new construction in a historic district which included the church as a contributing property. The Archbishop brought a lawsuit challenging the permit denial under the Religious Freedom Restoration Act of 1993 (RFRA, pronounced "rifra"). Archbishop Flores argued that his congregation had outgrown the existing structure. He claimed his ability to act on his beliefs was substantially burdened by the denial of his proposed addition.
Yup. A zoning law meant to protect a historical district was impeding their religion, which I'm sure absolutely had to be practiced in that historical district, and that it had to be practiced in an expanded wing that would upset the look of that historical district. God's weird that way.
Elena Kagan has already shown that she's not that excited about ending discrimination and favors taking the side of power. We're all supposed to be just fine with parts of cities deemed off-limits to people who don't follow someone's specific interpretation of Christianity's rules because a landlord feels that they can compel others to abide by the rules of their religion.
Carving out an exemption for "religion" for anti-discrimination legislation would just gut the anti-discrimination legislation; what backlash and resistance against civil rights expansion has not been seeped in religious rhetoric? Discrimination against LGBTQ people, women, racial minorities, religious minorities, unmarried couples, and even people with some diseases and disabilities have all been justified at one point or another with religion.
But part of getting along in civil society is that we have to be able to (or at least forced to) leave some of the more tribalistic and divisive parts of religion at home, and, if we can't, then make a sacrifice for that religion. That landlord wanted to have her cake and eat it too - instead of sacrificing the extra income she made on her property, she was entitled to that and her religious belief that she didn't have to follow the law. And, of course, she expected the law to enforce her contracts with her tenants and evict them if their religious practices, however they defined them, damaged the property. (What if marriage was against this couple's religion? I'm sure any judge would love the "My religion is better than yours" fight in court.)
Oh, well. This revelation will only endear Elena Kagan to Congress, who would never dream of rejecting someone for such a powerful position because she's to conservative. When has the Senate ever rejected any proposal for not being sufficiently liberal?